According to seemingly reliable reports in the media, President Trump may have determined that his Administration will not conduct a criminal investigation of Hillary Clinton (and presumably of the Clinton Foundation and those associated with it as well).

The reasons that were bruted for this decision prior to Mr. Trump’s inauguration should give one pause. First, various pundits contended that investigation of Mrs. Clinton would run afoul of some supposed “political tradition” in this country which discountenances prosecution of the loser of an election by the winner—when in fact Mrs. Clinton would be investigated, not because she lost the Presidential election, or even because of her dangerously aberrant political views, but instead because she has allegedly engaged in serious misbehavior, quite unconnected to the election, for which any other such perpetrator would surely be prosecuted sine die. Second, one of Mr. Trump’s aides mouthed the psychobabble that foregoing prosecution of Mrs. Clinton could “help her heal”—when “escape” would be the more accurate verb. Third, Mr. Trump himself announced: (i) that “I don’t think we have to delve back in the past”—notwithstanding that every criminal investigation does so; (ii) that prosecution of Mrs. Clinton “would be very, very divisive for the country”—as if affording her immunity from prosecution would not be; and (iii) that “I don’t want to hurt them [i.e., the Clintons]…they’re good people”—leaving to worrisome conjecture what Mr. Trump’s definition of “good people” might be. And most recently, when asked by a reporter whether no further investigations of Mrs. Clinton would be conducted, President Trump responded, “I certainly hope so”.

The most obviously justified criticism of Mr. Trump’s apparent willingness to allow Mrs. Clinton and others associated with her “to skate”, unscathed by honest and competent inquiries into their shadowy dealings, is that it proves once again how in the contemporary United States one body of law (or absence of law) specially privileges and protects the super-rich, the politically well-connected, and other big wheels, top noises, and string-pullers, while a quite different body of law bears down on everyone else. Any constitutionalist should be concerned, though, that something far more serious is involved here.

Article II, Section 1, Clause 7 of the Constitution provides that “[b]efore he [i.e., the President-elect] enter on the Execution of his Office, he shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” The text of this “Oath or Affirmation”sets out, not a possibly inaccurate prediction cast in terms of the simple futurity of temporal sequence (“I shall”), but instead a strict promise of fidelity cast in terms of the emphatic futurity of a solemn assurance (“I will”). Moreover, “taking the * * * Oath or Affirmation” is the condition precedent sine qua non to “enter[ing] on the Execution of [the] Office [of President]”. Self-evidently, if it is not “take[n]” at all, a President-elect cannot “enter on the Execution of [that] Office”. No less plain is that a President-elect cannot “enter on the Execution of [that] Office” if he “take[s] the * * * Oath or Affirmation” falsely. For a false “Oath or Affirmation” is, by definition, fraudulent. And fraud vitiates and renders inoperative any and every act which it has facilitated. To be sure, the falsity of a representation as to the “Oath or Affirmation” might not be evident when it was uttered, because a rogue President-elect would be careful to engage in fraudulent concealment of his true state of mind when he deceitfully “t[ook] the * * * Oath or Affirmation”. That, however, is not the situation here.

Article II, Section 3 of the Constitution sets forth the chief duty of the President, that “he shall take Care that the Laws be faithfully executed”. Observe that the phrase “faithfully executed” in this provision echoes the phrase “faithfully execute” in the “Oath or Affirmation”. Thus, his “Oath or Affirmation” requires the President, “to the best of [his] Ability, to preserve, protect and defend the Constitution” by fulfilling the duty to “take Care that the Laws be faithfully executed”, without any exception (because the Constitution allows for none).

It requires no extended argument to establish that, now installed in “the Office of President”, Mr. Trump disposes of every right and power necessary, sufficient, and convenient to ensure that “the Laws [shall] be faithfully executed” with respect to Mrs. Clinton and her associates. And no airy notion that she were in some sense and to some degree a “good person” could relieve Mr. Trump of the duty “faithfully [to] execute[ ]” “the Laws” as to her. (Indeed, as a “good person”, Mrs. Clinton herself should welcome the opportunity in an official forum to be absolved of the malodorous charges her record of “public service” seems to substantiate in many Americans’ estimation.)

To be sure, as is every American, Mrs. Clinton and her associates are entitled to the presumption of innocence. But, based upon what is already known about their behavior, this country is entitled to see them properly investigated, indicted, and prosecuted, in order to test that presumption in the crucible of a public trial, before a jury of their peers, pursuant to Article II, Section 2, Clause 3 and Amendments Five and Six of the Constitution surely, and Article III, Clause 1 possibly. Mr. Trump has, however, left the world with the distinct impression that he does not intend to press for investigations into Mrs. Clinton’s questionable affairs. As a matter of constitutional law (as well as common sense), the reasons he has advanced for this disinclination are unconvincing, if not patently specious. Therefore, if before his inauguration he actually did not, and following his inauguration still does not, intend under color of “the Office of President” to “take Care that the [applicable] Laws be faithfully executed” as to her, then he did not “take the * * * Oath or Affirmation” truthfully—and as a result did not “enter on the Execution of [the] Office [of President]” at all. If so, America finds herself confronted with yet another Presidency constitutionally questionable from its supposed inception.

Admittedly, this concern rests upon something of a fine legal point—although not one so fine as to be indiscernible on the face of the Constitution. In any event, the Constitution is festooned with fine points intended to impede and even impale rogue public officials in their malicious course. These points can serve their purposes, however, only if they are forcefully driven home, without any compunction, whenever suitable occasions arise. Few crimes are worse than the systematic prostitution, perversion, and betrayal of public office for private political and financial gain. But surely one of them is for someone to attempt to “enter on the Execution of [the] Office [of President]” knowingly and willfully intent upon allowing anyone who has notoriously engaged in such misbehavior to escape punishment.

Unfortunately, the running of various statutes of limitations might preclude prosecution of Mrs. Clinton and her associates with respect to some of their alleged misbehavior—although statutes of limitations can be removed or extended by legislation. See, e.g., Chase Securities Corporation v. Donaldson, 325 U.S. 304 (1945); Campbell v. Holt, 115 U.S. 620 (1885). Where statutes of limitations would impose a bar, though, it would still behoove the Trump Administration to investigate these matters thoroughly and report its findings completely to the public. See Lee Duigon’s recent NewsWithViews commentary “A Speech Mr. Trump Ought To Make” (17 November 2016).

As a complicating factor, it is not inconceivable that Mr. Trump might seek to finesse this apparently distasteful political situation in a legalistic fashion by purporting to extend some sort of blanket “pardon” to Mrs. Clinton and her associates. Any such “pardon” which issued before indictments had specified the crimes the members of the Clinton cabal had allegedly committed would be constitutionally problematic, however.

8 comments

Grand Jury – “The grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right. In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people”.

“Thus, citizens have the unbridled right to empanel their own grand juries and present “True Bills” of indictment to a court, which is then required to commence a criminal proceeding. Our Founding Fathers presciently thereby created a “buffer” the people may rely upon for justice, when public officials, including judges, criminally violate the law.” (Misbehavior, “Good Behaviour” requirement)

“The grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists. The “common law” of the Fifth Amendment demands a traditional functioning grand jury.”

“Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised.”

“The grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses and deliberates in total secrecy.”

“Recognizing this tradition of independence, we have said the 5th Amendment’s constitutional guarantee presupposes an investigative body ‘acting independently of either prosecuting attorney or judge”.

“Given the grand jury’s operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury’s evidence-taking process, but we have refused them all. “it would run counter to the whole history of the grand jury institution” to permit an indictment to be challenged “on the ground that there was incompetent or inadequate evidence before the grand jury.” (Nor would it be lawful of them to do so.) Justice Antonin Scalia writing for the majority said In the Supreme Court case of United States v. Williams, 112 S.Ct. 1735, 504 U.S. 36, 118 L.Ed.2d 352 (1992)

The problem is not that we have not been given the tools we need by the US Constitution, the problem is that we will not use them.

So well written and reasoned, Dr. Vieira. Thank you. If Donald Trump and his administration do not investigate, indict if applicable, convict and appropriately sentence Hilary Clinton and her foundation then Tump himself should be added to the long list of suspected traitors to the people of the United States, including Bill Clinton, George Bush, Barack Obama and many in their administrations. They all should be investigated. To quote the Declaration of Independence: “But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.”

A well researched and thought out article, as is the norm for Dr. Vieira.
This raises numerous questions which have been troubling me, (and hopefully you also), for a while now. It does not surprise me that the good doctor would be the one to ask these very important questions, all of which deserve honest, truthful, and timely answers.
I hope everyone clicked on the link and read the entire article, as there is a part 2, in addition to the rest of part 1, to be found there. In fact, if you thought what is reprinted here is good, I have no doubt you will find the rest of it as interesting and important as I did.
Thank you for this Dr. Vieira. And thank you Nancy, for posting it here.
FtR,
David

When I watched the swearing in ceremony, Mike Pence took his oath, Donald Trump did not. It was probably due to Judge Roberts inability to remember the text as with Obama, or……?
Now I think Dr.Vieira had a good point, so does any one plan on doing anything about it? I didn’t think so.